"Before [Bennett] arrived, defendant had
already handed the vehicle's keys to Ms. Campbell and told her to go to the
restaurant to eat breakfast and to take care of the dog in the car. In other
words, the car was immobile because [defendant] was no longer near the vehicle
and did not possess the keys before [Bennett] arrived at the parking lot and
developed probable cause. The vehicle was not the focus of the stop of
[defendant] at the time of the encounter by [Wohls].

"* * * * *

"A vehicle is 'mobile' if it is actually
moving when first encountered and is actually or constructively occupied. * * *
When defendant was approached by [Wohls], the vehicle [did] not qualify as 'mobile.'
[Defendant] was stopped outside his vehicle which was about thirty feet away.
The focus of the stop was not the vehicle but [defendant]. * * * Since the
focus of the stop was the person and not the person in the automobile, the
automobile 'mobility' exception does not apply. At the time of defendant's
stop by [Wohls], there was no probable cause to search the automobile and there
was no focus on the automobile. It simply wasn't a concern until [Bennett] * *
* developed probable cause."

We begin with the state's argument
that the search was lawful because it fell within the "automobile
exception" to the warrant requirement of Article I, section 9, of the
Oregon Constitution. That judge-made doctrine has what charitably might be
called an irregular history. We have exhaustively recounted that history in
earlier cases--notably State v. Coleman, 167 Or App 86, 91-95, 2 P3d 399
(2000), and State v. Snow, 179 Or App 222, 226-32, 39 P3d 909 (2002), aff'd,
337 Or 219, 94 P3d 872 (2004)--and it would serve no purpose to do so again.
Briefly, the exception was created in State v. Brown, 301 Or 268, 274,
721 P2d 1357 (1986), where the Supreme Court held that no warrant was necessary
to search a vehicle, "provided (1) that the automobile is mobile at the
time it is stopped by police * * * and (2) that probable cause exists for the
search of the vehicle." Notably, in that case, the court did not hold
that the automobile exception applied when police came upon an unmoving
vehicle, and, in fact, that suggestion was disavowed in State v. Kock,
302 Or 29, 32-33, 725 P2d 1285 (1986), where the court in no uncertain terms
rejected the theory that the exception extended to "stationary but
operational vehicle[s]." Further, in Brown, the court held that,
when officers had probable cause to search the automobile for evidence of a
theft, they could search the vehicle for evidence of that crime. 301 Or
at 270. The case did not deal with the situation in which police approach a
parked vehicle without any suspicion of criminal activity and, during the
subsequent conversation, develop probable cause and then conduct a warrantless
search. Nor did it deal with the situation in which police have probable cause
to stop a vehicle for one offense (for example, a traffic violation) and then
conduct a search of the vehicle for evidence of a crime for which they develop
probable cause only during the stop (for example, possession of contraband).

In the years since Brown and Kock,
however, the courts have "refined the automobile exception analysis,"
Coleman, 167 Or App at 92, although "refined" is not
universally accepted as the proper verb. See State v. Burr, 136 Or App
140, 150, 901 P2d 873, rev den, 322 Or 360 (1995) (Armstrong, J.,
dissenting) (court has expanded Brown and ignored Kock). At
present, a vehicle is "mobile" for purposes of the automobile
exception as long as it is operable. State v. Meharry, 342 Or 173, 181,
149 P3d 1155 (2006) (vehicle remains mobile even when blocked by a police car
and driver is under arrest because the vehicle "could have been moved once
[the police officer] relinquished control over it"); Snow, 179 Or
App at 232 (describing such cases as involving "constructive
mobility"); State v. Cromwell, 109 Or App 654, 820 P2d 888 (1991).
That is so even if it is evident that the vehicle will be impounded, unless the
impoundment procedures have actually commenced. State v. Getzelman, 178
Or App 591, 601, 39 P3d 195, rev den, 334 Or 289 (2002). Further,
police can search a vehicle pursuant to the automobile exception even if, at
the time the officers first focus on the vehicle, they have no suspicion of
criminal activity. Coleman, 167 Or App at 95-96; Burr, 136 Or
App at 143; Cromwell, 109 Or App at 656. Situations in which the
exception does not apply include those in which the vehicle is
functionally disabled, State v. Warner, 117 Or App 420, 844 P2d 272
(1992); those in which the vehicle is impounded or in the process of being
impounded, State v. Kruchek, 156 Or App 617, 969 P2d 386 (1998), aff'd
by an equally divided court, 331 Or 664, 20 P3d 180 (2001); and those in
which the officers do not focus attention on the vehicle until after they have
established probable cause to detain the defendant, Coleman, 167 Or App
at 96.

As defined by these cases, the
automobile exception encompasses the warrantless search of defendant's van.
Bennett focused his attention on the van almost immediately after he arrived on
the scene, when he asked for (and was denied) consent to search it. The trial
court ruled, and we agree, that he did not have probable cause to search it at
that point; he developed probable cause to search the van only after Campbell
admitted that it contained marijuana in an amount that "could be"
more than an ounce. Defendant argues that, because Campbell admitted only that
there "could be" more than an ounce, the officers lacked probable
cause to believe the van contained evidence of a crime. Even if we were
to agree that "could be" does not equate to "probably is,"
our determination would be the same; in State v. Smalley, 233 Or App
263, 225 P3d 844, rev den, 348 Or 415 (2010), we held that probable
cause to believe a mobile vehicle contained less than an ounce of marijuana
justifies a warrantless automobile search because even that noncriminal amount
is "contraband."

At the time that this probable cause
developed, the vehicle was "mobile" under our cases and under Meharry,
342 Or at 180-81, in which, as noted above, the Supreme Court held that even an
automobile that was blocked by a police car and whose driver was under arrest
remains mobile if it could be moved after the police relinquish control over
it. Unlike the vehicle in Warner, the vehicle here was operable.
Unlike the vehicle in Kruchek, it was not being impounded. And unlike
the vehicle in Coleman, it became the subject of the officer's focus before
probable cause to arrest defendant had developed, that is, before Bennett
learned about the drugs. The search therefore came within the expansive
definition of the automobile exception that has evolved since Brown and Kock.

Reversed and remanded.

1.Defendant
also argued that Bennett did not have probable cause to arrest him and that
statements he made after invoking his Miranda rights were inadmissible.
We reject the probable cause argument without discussion. The trial court
agreed with defendant's Miranda argument and that ruling is not
challenged on appeal.